Citation Nr: 0813250 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 03-11 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left hip and leg disability. 2. Entitlement to service connection for a right hip and leg disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from July 1965 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the veteran's claim for service connection for bilateral hip and leg disabilities as new and material evidence had not been received. In April 2004, the Board reopened and remanded the matter to the RO for additional development and adjudication on the merits. In September 2006, the veteran testified during a Travel Board hearing before the undersigned Acting Veterans Law Judge at the RO. A transcript of that hearing is of record. In June 2007, the Board remanded these matters to the RO for additional action. After completing the requested action, the RO continued the denial of the claims for service connection (as reflected in the October 2007 supplemental statement of the case (SSOC)) and returned these matters to the Board for further appellate consideration. The veteran submitted additional evidence directly to the Board without a waiver of RO review in December 2007. As this evidence pertains to the veteran's left hip and leg claim, and as this claim is being resolved in the veteran's favor, the Board may proceed with consideration of this appeal. The issue of entitlement to service connection for a right hip and leg disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The medical evidence clearly and unmistakably shows that the veteran had a left hip and leg disability that pre- existed service. 2. The medical evidence does not clearly and unmistakably show that the veteran's left hip and leg disability was not aggravated by such service. CONCLUSION OF LAW 1. The presumption of soundness on entry in service as to the veteran's left hip and leg disability is rebutted. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2005); 38 C.F.R. § 3.304 (2007). 2. Service connection for a left hip and leg disability is warranted. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007); VAOPGCPREC 3-2003. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA is not applicable where further assistance would not aid the veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision in this appeal, further notification and assistance is unnecessary to aid the veteran in substantiating his claim. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law also provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now states that to rebut the presumption of soundness, VA must establish by clear and unmistakable evidence both that the disability existed prior to service and that it was not aggravated by service. See VAOPGCPREC 3- 2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2007). Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id.; See also Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. § 3.303(c), 4.9 (2006); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). A precedent opinion of the VA General Counsel, VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)), held in essence that a disease which is considered by medical authorities to be of familial (or hereditary) origin must, by its very nature, be found to have pre-existed a claimant's military service, but could be granted service connection if manifestations of the disease in service constitute aggravation of the condition. Moreover, congenital or developmental defects, as opposed to diseases, could not be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service- connected. Id. A. Left hip and leg The veteran is presumed under the law to have been in sound condition when he entered active duty in July 1965. The veteran's enlistment examination evaluated the veteran's musculoskeletal system and lower extremities as clinically normal. On contemporaneous self-report the veteran noted cramps in legs, which an examiner reported was not considered disabling. No left hip or leg disability was noted on entrance. Although a left hip disability was not "noted" on the veteran's entrance examination, the evidence, taken as a whole, constitutes clear and unmistakable evidence that the veteran's left hip disability preexisted service. In this regard, the veteran's service treatment records (STRs) indicate that he immediately sought treatment for left hip pain shortly after entrance into service, and he made contemporaneous statements on entrance examination that he had leg cramps. Moreover, X-rays in September 1965 revealed irregularity of the left acetabulum, and irregularity of the left femoral head. The following differential diagnoses were considered: Legg-Perthes, aseptic necrosis, old trauma of some sort, or perhaps old inflammatory disease. The veteran submitted a private medical opinion in May 2002 along with an October 2002 addendum that found the veteran probably had pre-existing degenerative joint disease (DJD) of the left hip, not yet apparent at time of enlistment. A September 2007 VA examiner also found that September 1965 x-rays of the veteran's left hip showed abnormalities, which he noted was only two months after the veteran's enlistment. He opined that it was more likely than not that this condition existed prior to the veteran's enlistment. A history of left hip pain prior to service was also described to the VA examiner by the veteran himself. Therefore, the Board finds after consideration of all the evidence that the veteran's left hip condition clearly and unmistakably existed prior to service. However, with respect to rebutting the presumption of soundness, as noted above, the Board's inquiry does not end with a determination that the veteran's left hip condition clearly and unmistakably preexisted service. The Board must also determine by clear and unmistakable evidence whether the veteran's preexisting disorder was not aggravated during service. To make this determination, the Board must consider the veteran's service treatment records (STRs) as well as evidence developed after service. The veteran's STRs establish that he was treated for left hip pain during service. No trauma was noted. The veteran contends that during training on a rifle range, an instructor pushed his back forward, and he felt a "pop" in his hip. He further maintains that this event resulted in his left hip problems that persisted after service. On that point, the private medical opinions submitted by the veteran found that the event described by the veteran, noted above, as well as his chronic physical duties in the military may have contributed into the progression of his pre-existing left hip DJD into full-blown Avascular Necrosis (AVN) and/or Legg- Perthes disease. The September 2007 VA medical examiner, who had the benefit of a review of the entire claims file in combination with examination of the veteran, determined that the veteran's left hip condition had beginnings prior to his enlistment. He added that there was no history suggestive of severe trauma during military service. What the Board finds significant is that the VA examiner focused his findings on the veteran's left hip, and concluded that he was unable to "resolve the issue of repetitive trauma due to rigors of physical training and activities in military service aggravating his most likely pre-existing condition without resort[ing] to mere speculation." The Board notes that it need not be proven to a certainty that the veteran's left hip condition is related to the veteran's military service. Rather, as has been discussed above, it must be established by clear and unmistakable evidence that the left hip disability was not aggravated by military service. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). In this case, no such evidence exists in the record. The implication here is that there are one or more factors that contributed to the veteran's status post left hip replacement with residuals, as diagnosed in the September 2007 VA examination report. The September 2007 VA examiner did not conclude that the veteran's service did not exacerbate the veteran's pre-existing left hip condition. He was unable to rule out the possibility that at least some of the factors that worsened the veteran's pre-existing left hip condition were incurred during service. None of the competent medical evidence clearly and unmistakably establishes that no aggravation occurred during or due to service. Hence, the Board has reached the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the veteran's left hip condition was not aggravated during service. Thus, service connection is warranted for a left hip disability. ORDER Service connection for a left hip and leg disability is granted. REMAND In an October 2002 statement, the veteran raised the issue of service connection for a right hip and leg disability as secondary to his left hip disability. As service connection for a left hip and leg disability was not yet established, the RO did not address this issue. Given the fact that the current decision now establishes service connection for the left hip and leg, the Board finds that these contentions are inextricably intertwined with the claim for service connection on a direct basis, and must now be addressed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, the Board notes that the July 2007 Board remand requested that, if the examiner were to find that there was clear and unmistakable evidence that only one of veteran's hip and leg disabilities existed prior to service and that there was no clear and unmistakable evidence that it was not aggravated during service, then the examiner was also to provide an opinion as to whether it was as likely as not that this hip disability was the cause of the other hip disability. Unfortunately, the September 2007 VA examiner did not provide this portion of the opinion. The Board acknowledges that the opinion request contained in the July 2007 remand was necessarily complex and that this made it difficult to follow. Nevertheless, the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the veteran's claim for service connection for a right hip and leg disability must be remanded in order to obtain the opinion that was previously requested in the July 2007 remand. Accordingly, the case is REMANDED for the following action: 1. Return the veteran's claims folder to the examiner who conducted the September 2007 VA examination. If this examiner is unavailable, the claims folder should be provided to another examiner qualified to express an opinion in orthopedics. After a review of the medical records, the examiner should attempt to express the following opinion: 1) is it as likely as not that the veteran's service connected left hip disability has caused or aggravated his disability of the right hip and leg? The reasons and bases for this opinion should be provided. Please note that an additional examination should be scheduled only if the examiner finds a new examination is necessary to render the requested opinion. 2. After the opinion has been obtained, reconsider the veteran's claim, including on the basis as to whether or not the right hip and leg disability is secondary to the service connected left hip and leg disability. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs